Post-hire questionnaire combats misrepresentation

I was a guest speaker at a recent seminar and the question of misrepresenation came up. Namely, how does an Employer protect itself from misrepresentation and establish such a defense? Another concern is how to negotiate federal employment law, namely the Americans with Disabilities Act.

More after the jump.

The standard for misrepresentation is founded on the case of Martin v. Carpenter, 132 So.2d 400. In that case, the Florida Supreme Court found an Employer can deny a claim when a Claimant falsifies a pre-existing condition during the hiring process and subsequently injures the same condition. This is obviously a powerful tool for Employers. The problem is that case was decided in 1961, well before Congress passed the ADA.

So, the question is, how does an Employer learn about a potential employee’s medical history without discriminating them? After all, per Martin v. Carpenter, an Employer has to rely upon the respresentations of the potential hire. They have to ask the appropriate questions.

A key is to look at the Equal Employment Opportunity Commision(EEOC). The EEOC Technical Assistant Manual, Ch. 5.5 (see also 29 CFR 1630.4) directs when an Employer can ask about a potential new employee’s health. There are 3 stages** where an Employer can find inquire health questions:

The first is before making a job offer when describing the physical demands of a job, but the Employer cannot ask about disabilities or prior W/C accidents/injuries.

The second stage is post offer, but before the job begins. This is where the post-hire medical questionnaire is allowed and an Employer can inquire about past accidents/injuries. Employers can even require a medical examination. A companies who employ drivers with commercial driver licenses require some form of medical examination. (Their general liability carriers require this too.)

The third stage is during employment, but the medical questions are limited to just job performance or safety issues (if an Employer believes an employee cannot physically perform the job safely or efficiently.)

Keep in mind, the ADA does not apply to Employers who employ less than 14 employees, so a medical questionnaire is allowed at any time for small Employers. Also, the Florida State Courts have ruled that an Employer does not have to comply with the ADA to assert misrepresentation. In other words, an Employer can have a job application that blatantly violates the ADA. But, if the employee still lies on that application, the Employer can still assert misrepresentation to deny Florida W/C benefits.

However, I do not recommend this to my employers. Misrepresentation can still be proven by carefully following federal guidelines. In fact, a post hire questionnaire—in compliance with the ADA—shows a Judge that you did the right thing but the Claimant did not by lying to you.

If you have more questions about the misrepresentation defense, see my FloridaWC.com educational video series here.